Abrams v. Intuitive Surgical, Inc. et al

Filing 180

ORDER by Magistrate Judge Howard R. Lloyd re 171 Discovery Dispute Joint Report No. 5. (hrllc2, COURT STAFF) (Filed on 10/19/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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IN RE INTUITIVE SURGICAL
SECURITIES LITIGATION

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Case No.5:13-cv-01920-EJD (HRL)

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ORDER RE DISCOVERY DISPUTE
JOINT REPORT NO. 5

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Re: Dkt. No. 171

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In this putative class action, plaintiffs sue Intuitive Surgical, Inc. (Intuitive) and several

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individual defendants for alleged securities fraud. Plaintiffs claim that defendants concealed

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safety defects in Intuitive’s da Vinci Surgical System and lied about the company’s business

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metrics and financial prospects.

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At issue in Discovery Dispute Joint Report (DDJR) No. 5: Whether plaintiffs should be

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permitted to take 16 additional depositions (over and above the presumptive limit of 10). The

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matter is deemed suitable for determination without oral argument. Civ. L.R. 7-1(b). Upon

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consideration of the parties’ respective arguments, this court denies plaintiffs’ request.

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Absent leave of court or stipulation of the parties, a party may not take more than ten

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depositions. Fed. R. Civ. P. 30(a)(2)(A)(i). A party seeking leave to take more depositions must

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make “a particularized showing of why the discovery is necessary.” Archer Daniels Midland Co.

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v. Aon Risk Services, Inc. of Minnesota, 187 F.R.D. 578, 586 (D.Minn.1999); see also Authentic,

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Inc. v. Atrua Technologies, Inc., No. C08-1423PJH, 2008 WL 5120767, at *1 (N.D. Cal., Dec.4,

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2008) (“A party seeking to exceed the presumptive number of depositions must make a

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particularized showing of the need for the additional discovery.”). “To meet this requirement of a

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particularized showing of need, the moving party must go beyond general assertions regarding the

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potential relevance of the proposed deponents’ testimony to demonstrate that the probable

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testimony of each proposed deponent is essential to the moving party’s case.” Alaska Electrical

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Pension Fund v. Pharmacia Corp., No. 03-1519 (AET), 2006 WL 6487632, at *4 (D.N.J., Aug. 22,

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2006) (citing Archer Daniels Midland Co., 187 F.R.D. at 587).

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Plaintiffs have not made the requisite showing of particularized need here. Two the
proposed deponents are unnamed “Insurance Carriers” and a “Products Liability Witness”—and,

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United States District Court
Northern District of California

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as to the latter, plaintiffs do not explain why such testimony is relevant. They also seek the

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deposition of Nasrin Mirsaidi, a Food and Drug Administration (FDA) employee, but do not show

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that they can or have obtained the requisite agency approval under 21 C.F.R. § 20.1, which

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prohibits FDA employees from testifying in civil matters without such approval. Plaintiffs state

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that they believe the 16 additional witnesses will provide non-cumulative and non-duplicative

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testimony, but do not explain why that is so. For their part, defendants point out that:

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Three of the proposed deponents (Joseph Orban, Justin Krom, and Scott Manzo)

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are design engineers who worked in the same office on the same project and

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reported to Salvatore Brogna (a noticed deponent).

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Proposed deponent Tabitha Reed held the same position in regulatory compliance

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as Jane Clay (a noticed deponent) and both Reed and Clay reported to Dave Rosa

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(another noticed deponent).

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Proposed deponents Casper Uldriks, Cindy Domecus, and Stewart Crumpler are all

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consultants, whom defendants say were identified by plaintiffs as having consulted

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on the same matters (i.e., “MDR Guidance,” “guidance for MDR reporting,” and

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“guidance relating to MDR reporting”).

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Plaintiffs have not explained why they would need to depose all of these people or how the

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proportionality and other requirements of Fed. R. Civ. P. 26(b)(2) are satisfied. Accordingly, their
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request for leave to conduct 16 additional depositions is denied.
SO ORDERED.
Dated: October 19, 2016

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HOWARD R. LLOYD
United States Magistrate Judge

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United States District Court
Northern District of California

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